Rejected WMATA ads

J.K. Trotter filed this request with the Washington Metropolitan Area Transit Authority of Washington, DC.
Tracking # 17-0039
Status
Completed

Communications

From: J.K. Trotter

To Whom It May Concern:

Pursuant to the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. ("D.C. Act"), I hereby request the following records:

Copies of all proposed advertisements that were rejected by the Washington Metropolitan Area Transit Authority for placement in or around the Metrobus and Metrorail system. The requested records include all correspondence, including emails, between employees and/or designated representatives of WMATA and outside groups or individuals seeking to advertise with WMATA that resulted in an ad being rejected. Please limit this request to records that were created between January 1 2016 and February 15 2017.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 15 business days, as the statute requires.

Sincerely,
J.K. Trotter

From: Bacchus, Sonia A.

Dear Mr. Trotter:

This is an acknowledgement and partial decision regarding your February 15, 2017, request for the following records from January 1, 2016 through February 15, 2017:

1. Copies of all proposed advertisements that were rejected by the Washington Metropolitan Area Transit Authority for placement in or around the Metrobus and Metrorail system; and
2. All correspondence, including emails, between employees and/or designated representatives of WMATA and outside groups or individuals seeking to advertise with WMATA that resulted in an ad being rejected.

You submitted your request under the District of Columbia Freedom of Information Act of 1974. Please be advised that the Washington Metropolitan Area Transit Authority (WMATA) is not subject to any state or federal Freedom of Information Act or Public Records law. However, WMATA has a Public Access to Records Policy (PARP), which is available on our website at https://www.wmata.com/about/records/public-records.cfm, under the section titled Legal Affairs, and we will process your request in accordance with the PARP.

Partial Decision

With respect to Part 1 of your request, WMATA denies this part of your request pursuant to PARP Exemption 6.1.4 (trade secrets and commercial/proprietary information) because the artworks submitted for the proposed ads are the intellectual property of the companies that submitted them and did not run in our system.

Pursuant to PARP Exemption 6.1.5 (deliberative process privilege), WMATA's response to Part 2 of your request will not include communications among employees and WMATA's contractor to the extent that they reflect internal opinions, evaluations and determinations, including attorney advice, leading up to WMATA's final decision regarding the proposed ads, and as such, are exempt from disclosure. Moreover, WMATA's contract with its contractor does not authorize WMATA's access to the contractor's correspondence with advertisers. Therefore, any correspondence between the contractor and advertisers are not WMATA records because they are not within WMATA's control, and as such, are not subject to the PARP. See PARP § 3 (PARP applies to all records received or generated by WMATA, its officers, employees and agents in and through the regular course of WMATA's business and in WMATA's control at the time of the response).

Therefore, in response to this request, WMATA will search its records for any correspondence that WMATA may have had with advertisers directly. Please be advised that while WMATA generally aims to respond to a request for records within 20 business days following receipt of the request, additional processing time is required for requests that prove to be complex, such as, the search, retrieval and review of emails.

Exemptions

The PARP provides exemptions for certain types of data, including: (1) information that could compromise WMATA infrastructure or security; (2) information that is solely related to the internal personnel rules and practices; (3) information that is exempt by statute; (4) proprietary commercial or financial information; (5) internal deliberations on policy matters or attorney-client privileged communications; (6) information that, if released, would cause a clearly unwarranted invasion of personal privacy; (7) certain information compiled for law enforcement purposes; and (8) registered Smart rip® information; and (9) customer financial information. Generally, WMATA's response will not include any exempt information.

Fees

The PARP provides for the assessment of fees associated with a request that requires more than two hours of staff time to process. These fees are calculated at the employees' basic rate of pay, plus an additional 50 percent to cover benefits, for the time spent responding to a request. Additionally, if hard copy records are provided, there is a 15 cent per page copying fee - which WMATA waives if the records are under 100 pages. In general, a request is considered an agreement to pay all applicable fees. Advance payment is required where the fees are likely to exceed $250.

You have stated that your request is not being made for commercial purposes, and any records released will be made available to the general public. We interpret this statement as a request for a public interest fee waiver, but you have not provided sufficient information to evaluate your request. Please submit the following additional information.

1) Describe the purpose for your request of these records, and your intended use of them.

2) Describe how you intend to disseminate these records to the public, and how broad an audience you anticipate the disclosure will receive.

3) If your request is on behalf of an organization, describe that organization, including its expertise in matters associated with these records and how your organization is actively involved in disseminating information to the public.

4) Describe any commercial or profit interest that you or your organization has in these records, and how this commercial interest, if any, compares to the public interest described by your previous answers.

If we do not receive this additional information within 10 business days - by March 21, 2017 -- we will categorize you as a commercial requester for fee categorization purposes.

Appeal Rights

If you wish to appeal WMATA's decision, in accordance with PARP § 9.1, you may file a written appeal of the action with the Chief of External Relations within 30 business days of the date of this partial decision. Further details about our appeals process can be found on our website.

Future correspondence should be directed to my attention and should reference the PARP request number noted above. If you have any legal questions, please contact me at sbacchus@wmata.com or (202) 962-1093. If I am unavailable, you may contact Benjamin Rashbaum at brashbaum@wmata.com or (202) 962-1926. Sincerely,

Sonia Bacchus
Chief Counsel, Customer Service and
Regulatory Affairs
WMATA

This electronic message may contain information that is confidential or privileged. The information is intended for the use of the recipient named above. If you are not the intended recipient, be aware that any disclosure, copying, dissemination or use of the information is prohibited and no privilege is waived. If you have received this information in error, please (1) notify me immediately, (2) do not use, copy, disclose or disseminate this information in any way; and (3) collect all copies of the information that may have been inadvertently disseminated.

From: J.K. Trotter

Ms. Bacchus,

As requested by the WMATA, I am submitting answers to the following questions concerning a potential public interest fee waiver for my February 15, 2017 request seeking "copies of all proposed advertisements that were rejected by the Washington Metropolitan Area Transit Authority for placement in or around the Metrobus and Metrorail system" and "all correspondence, including emails, between employees and/or designated representatives of WMATA and outside groups or individuals seeking to advertise with WMATA that resulted in an ad being rejected."

Below I have listed each of WMATA's four questions, with the relevant answer after each one.

1. Describe the purpose for your request of these records, and your intended use of them.

The purpose of this request is to illuminate the process by which WMATA approves and rejects advertisements and other signage that will appear throughout the system under WMATA's administrative control. Insofar as WMATA is the recipient of public funds, and operates a public transportation system used by millions of people, the system whereby WMATA considers, approves, and rejects advertisements for inclusion is inherently in the public interest.

2) Describe how you intend to disseminate these records to the public, and how broad an audience you anticipate the disclosure will receive.

I intend to disseminate the records in my capacity as a full-time reporter for Gizmodo Media, a news organization headquartered in New York City with an estimated 100,000,000 monthly readers spread across its various titles.

3) If your request is on behalf of an organization, describe that organization, including its expertise in matters associated with these records and how your organization is actively involved in disseminating information to the public.

I am indeed making this request on behalf of an organizer which is also my employer, Gizmodo Media Group, whose reporters have repeatedly covered matters concerning government activities, transportation policy, and public advertising. It is actively involved in disseminating this kind of information to the public by virtue of operating a 24/7/265 newsroom covering a gamut of topics in the public interest, including the ones relevant here.

4) Describe any commercial or profit interest that you or your organization has in these records, and how this commercial interest, if any, compares to the public interest described by your previous answers.

Neither I nor Gizmodo Media has a commercial interest in these records. The records are being sought based solely on their relevance to the public interest and Gizmodo’s capacity to cover the issues that these records will illuminate. As such, there is no comparison between the public interest in these records (which is clear) and my own or Gizmodo's commercial interest (which does not exist).

I believe these answers satisfy the concerns you raised in your email to me. Please let me know if you need any other information.

Thank you, and sincerely,
J.K. Trotter

From: Bacchus, Sonia A.

Dear J.K. Trotter:

Please be advised that your request is being processed in the order received. Please reference the PARP Request number above when you communicate regarding this request to allow us to locate it quickly.

Sincerely,

Sonia Bacchus
Chief Counsel, Customer Service and
Regulatory Affairs
WMATA

This transmission is intended only for the proper recipient(s). It is confidential and may contain attorney-client privileged information or information prepared in anticipation of litigation. If you are not the proper recipient, please notify the sender immediately and delete this message. Any unauthorized review, copying, or use of this message is prohibited.

From: Bacchus, Sonia A.

Dear J.K. Trotter:

Please be advised that your request is being processed in the order received.

Sincerely,

Sonia Bacchus
Chief Counsel, Customer Service
& Regulatory Affairs.
&

From: Bacchus, Sonia A.

Dear Mr. Trotter:

This is WMATA's final decision regarding your February 15, 2017, request for the following records from January 1, 2016 through February 15, 2017:

1. Copies of all proposed advertisements that were rejected by the Washington Metropolitan Area Transit Authority for placement in or around the Metrobus and Metrorail system; and
2. All correspondence, including emails, between employees and/or designated representatives of WMATA and outside groups or individuals seeking to advertise with WMATA that resulted in an ad being rejected.

Prior Decision Regarding Part 1

On March 7, 2017, WMATA denied part 1 of your request pursuant to PARP Exemption 6.1.4 (trade secrets and commercial/proprietary information) because the artworks submitted for the proposed ads are the intellectual property of the companies that submitted them. Additionally, pursuant to PARP Exemption 6.1.5 (deliberative process and attorney-client privilege), WMATA informed you that in processing part 2 of your request, WMATA would redact communications among employees, including its counsel, and between WMATA and its contractor, to the extent that such communications reflect internal evaluations, preliminary determinations, and attorney advice. Finally, WMATA informed you that the contract with WMATA's contractor does not authorize WMATA's access to the contractor's correspondence with advertisers, and therefore, WMATA would not have their records.

At that time, you were informed of your appeal rights and you did not appeal.

Final Decision Regarding Part 2

In responding to part 2 of your request, WMATA searched its records for any correspondence that WMATA had with advertisers, and located the following email records (15 pdf pages total):

* Donna Murray (13 pdf pages)
* Lynn Bowersox (2 pdf pages)

Pursuant to PARP Exemption 6.1.6 (privacy), WMATA redacted the names, addresses, and phone numbers of individuals where we have determined that the privacy interest outweighs the public interest. Pursuant to PARP Exemption 6.1.5 (deliberative process/attorney-client privileges), WMATA redacted communications among employees, and with its counsel, to the extent that they reflect WMATA's internal deliberations leading up to a final decision.

Appeal Rights

If you wish to appeal WMATA's decision, in accordance with PARP § 9.1, you may file a written appeal of the action with the Chief of External Relations within 30 business days of the date of this partial decision. Further details about our appeals process can be found on our website.

Future correspondence should be directed to my attention and should reference the PARP request number noted above. If you have any legal questions, please contact me at sbacchus@wmata.com or (202) 962-1093. If I am unavailable, you may contact Benjamin Rashbaum at brashbaum@wmata.com or (202) 962-1926.

Sincerely,

Sonia Bacchus
Chief Counsel, Customer Service and
Regulatory Affairs
WMATA

This transmission is intended only for the proper recipient(s). It is confidential and may contain attorney-client privileged information or information prepared in anticipation of litigation. If you are not the proper recipient, please notify the sender immediately and delete this message. Any unauthorized review, copying, or use of this message is prohibited.

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